The blogosphere was up in arms over Adobe's initial TOS (Terms of Service) for the much-anticipated Photoshop Express beta launch last month, as I original posted here.
Adobe responded to concerns almost immediately and revised the TOS effective April 10 to use wording that gives Adobe much more realistic rights as concerns user submitted material. I think it is a tribute to the power of "the internets" that we can band together so quickly and unite our voices to make things happen. Wow, talk about strength in numbers.
But they made another change at the same time that few people seemed to have noticed.
It seems that when the lawyers revised the paragraph(s) pertaining to Adobe's rights concerning your photos, they also added a few paragraphs that gives a license to other users to legally use the photographs you make public by sharing your content.
The new paragraph 6.b. reads as follows:
By Other Users
You hereby grant Other Users a worldwide (because the internet is global), royalty-free (meaning that Other Users do not owe you any money), nonexclusive (meaning you are free to license Your Content to others) license to view, download, print, distribute, publicly perform and publicly display Your Shared Content subject to the limitations in Section 7. If you do not wish to grant these rights in Your Shared Content then do not share Your Content with Other Users. While you have the ability to remove Your Content from the service and/or the public areas within the Service and thus prevent future licenses from being granted, you acknowledge and agree that once Your Shared Content has been shared, Adobe can neither monitor nor control what Other Users do with it.
The Section 7 limitations noted in this paragraph refer to the license that Adobe gives to users to use/print/publish your photos:
7. Use of Shared Content
Section 5 (a) of the General Terms shall continue to apply to Adobe Materials. With respect to User Content, however, Section 5 (a) of the General Terms is hereby replaced with the following:
Adobe grants you a worldwide, royalty-free, nonexclusive license to view, download, print, distribute, publicly perform and publicly display content shared by Other Users with you via the Service or that Other Users make publicly available via the Service (“Shared Content”), subject to the following conditions:
1. Your rights granted by this Section are limited to your personal, informational, non-commercial and, in the case of a business, internal purposes only;
2. You may not sell, rent, lease or license the Shared Content to others;
3. You may not modify or alter the Shared Content;
4. You may not remove any text, copyright or other proprietary notices contained in the Shared Content; and
5. When you embed Shared Content on a web page, you agree that you will include a prominent link back to the Service from that page.
It's my guess that Adobe realizes that theft of images is rampant on the internet and is just trying to avoid getting caught in the middle of a lawsuit, but this is something that users really need to think about. What, you think just because you're not a pro that no one will want your photos, or that they're not worth any money? Maybe you never heard about the Virgin Mobile fiasco when they used Flickr photos for an ad campaign that had a Creative Commons license (which allowed for commercial use as long the photographer was attributed) which really were just snapshots of friends. Unfortunately Virgin Mobil neglected to obtain a model release for a minor depicted in one of the photos. How about Stephen Baker, who used a photo posted on another website to win a cash prize in a Fujifilm photo competition. Even though he was caught, the guy had the nerve to do it again. And thankfully was caught again. Ask the amateur photographers on Flikr if there's a problem with people stealing their photos.
Yes, theft of images is out of control on the internet, but at least if you retain your copyright (your photo is copyrighted the moment you activate the shutter, whether or not you register it) and control how your images are licensed, you have a legal basis for taking action. My problem with Photoshop Express' TOS is that, for example, another user could take a photo of your 6-year-old niece that you uploaded to a public album and post it on their personal website in an inappropriate manner, and there would be nothing you could do about it because you gave them a license to do so as long as it complied with the conditions outlined in paragraph 7. Do you really want to lose control over how and where your family photographs are used?
What bothers me most about the whole thing is that the people most likely to use Photoshop Express are the people least likely to know anything about intellectual property rights and laws. The fine details of copyright law are way beyond the scope of this post and my level of expertise (ha, even attorneys/experts/courts frequently appear confused), but I strongly encourage anyone who posts photos on the web (your own or those of others) to familiarize themselves with the Digital Millennium Copyright Act of 1998, both to make sure that your rights aren't violated and that you aren't violating anyone else's rights and therefor subjecting yourself to legal action.
As for Photoshop Express, if you decide to use it make sure you read the TOS before making your galleries public. Then read the TOS at other photo sharing sites. I looked at nine of the top sharing sites and all but one specifically protect your copyright. Only Kodak's EasyShare gallery permits other users to print your photos and place them in their own galleries. But even they don't give other users a license to pretty much use your photos however they wish.
Why aren't more people talking about this issue? To be fair, when Adobe revised their TOS they sent out a press release to the heavy hitters detailing the change. I'm sure most people looked at the revised wording and gave it their blessing. People are busy - How many would actually go back to the website and read through the entire TOS yet again to see if any other changes were made?
Anyway, be informed, read it for yourself, read the TOS at other photo sharing sites, and make your own decision over what level of control you want over your photographs.
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